August 1, 2014

Chicago Lawyer, Clifford's Notes

By Robert A. Clifford

Clifford Law Offices

A recent high-profile trucking Accident involved actor and comedian Tracy Morgan. His limo bus carrying his entourage on the New Jersey Turnpike was struck and overturned in a chain-reaction crash apparently started by a Wal-Mart truck, leaving the 45-year-old actor in critical condition. One limo passenger was killed and two more were airlifted to the hospital.

The truck driver from Georgia was charged with the death of Morgan's friend, and surprisingly, Wal-Mart's CEO quickly issued a statement saying that it would take full responsibility if, in fact, its driver caused the tragedy. The National Transportation Safety Board was on the scene investigating the incident.

Trucking Accidents are on the rise, according to the latest statistics collected by the Federal Motor Carrier Safety Administration. The number of truck crashes in 2011 (the latest statistics available) involving at least one fatality was 3,341, killing 3,757 people. That is an 11.9 percent increase over the 2009 record low. Nearly three times as many people die due to truck Accidents compared to those who die in aviation, boating and railroad Accidents combined, according to the FMCSA.

When litigating trucking Accident cases, obtaining the FMCSA safety regulations that deal with evidence retention guidelines is a priority. Become familiar with its website, fmcsa.dot.gov, which offers a "company snapshot" of various trucking companies — the number of trucks and drivers, the number of miles they drive annually, the types of goods they haul as well as the number of crashes — and even the number of trucks that are out of service because of the national regulation violations.

The last compliance review date and the rating the trucking company received is also available on the website and should be captured as a PDF file. It also might be wise to send out a Freedom of Information Act request to the FMCSA for all information that is available that could include details of compliance reviews and the company's insurance carrier as well as whether there was a revocation of insurance for a particular trucking company.

Because trucking companies are interested in keeping their vehicles on the road, it is imperative to move quickly when trying to obtain documents and other evidence involving a trucking Accident. One should notify the trucking company immediately after being retained. Defense Accident reconstruction experts and the defendant's insurance adjusters often are on the scene of the collision and may even be attempting to influence the police in their investigation. It is unlikely that plaintiff counsel will be present.

Evidence preservation letters are necessary in order to avoid spoliation of important evidence. Just what does that mean? Spoliation letters should be sent by certified mail to the truck driver, the trucking company and the insurer, alerting all potential defendants not only that an Accident occurred, but also that there is reason to believe that a claim is contemplated or pending. When requesting the preservation of all evidence, it is critical to specifically explain the type of evidence needed, including "black box" data, also known as electronic control module. And request that routine document and evidence destruction procedures be halted regarding the specific incident.

Proving spoliation in litigation requires one to demonstrate that the party was prejudiced by the absence of evidence. The evidence must be relevant and requested within the proper time period. If evidence is destroyed, whether negligently or intentionally, it could mean that the party's expert on this evidence will be barred or that an instruction will be given at trial to draw a negative inference against the defendants on that evidence.

The positioning of all video cameras that would be able to capture the Accident and schematic diagrams should be produced by the defendant, in addition to the identity of persons who operated the cameras and how they work — continuously or on override, how many gigabytes of information the camera holds, where these images are stored and who maintains this storage and has access to it, or who viewed it — are all discoverable issues.

In order to fully comply, the defendant might be required to identify asset protection managers, risk managers or outside claims people. Even if someone else connected to the videos possesses them, the defendant is required to disclose this information.

The retention policies of the trucking company also should be requested so that the plaintiff can determine if the defendant violated its own preservation policies, particularly in light of the knowledge that an Accident occurred in which someone was hurt or killed. According to FMCSA regulations, records of a trucker's driving log and daily inspection sheets should be kept for six months.

However, if the company has been put on notice, the company needs to retain these longer. Maintenance records of the vehicle should be kept for a year, but if there is pending litigation along with notice, the records need to be kept longer. GPS, black boxes (that can contain speed and braking information, which means having the truck towed and not driven) and other onboard electronic evidence that supports the driver's log does not have a specific retention time, but commentary in the FMCSA Reg. 395.a(k)1 suggests retention is in order. An agreement to download black box information with both counsels present should be arranged.

Of course, securing experts early is a necessity. Such an expert can, for example, assist in determining if mechanical failure was one of the causes of the Accident. Experts can be also be helpful in reviewing documents so that all theories of liability and all defendants are included when a complaint is filed.

With 109 fatal truck crashes reported in 2011, Illinois ranks seventh in the United States, an unenviable statistic. As the nation watches the case involving Morgan unfold — a case in which the trucker initially admitted he was up for 24 straight hours prior to the Accident — truck drivers need to be more mindful of the rules. Lives are at stake.

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